The seriously mentally ill (SMI) are only about 4 percent of all mentally ill people, but the havoc and pain they, their families, victims and the public endure from their illnesses are incalculable. Since California closed most of its psychiatric hospitals some 50 years ago, jails, prisons, hospital emergency departments and the streets have been dismal substitutes for quality locked psychiatric facilities.
It has otherwise been practically impossible for a concerned relative or friend to obtain a court order requiring the person to get necessary care. The process is burdensome, which by law must be “carried out with the utmost consideration for the privacy and dignity of the person for whom a court-ordered evaluation is requested.” This policy of favoring the liberty of the SMI person over his/her well-being and public safety is well-meaning but harmful and potentially dangerous. The psychotic individual off medication who lies collapsed on the sidewalk or is a ticking time bomb loves his/her wild freedom, does not understand the need for, and refuses treatment. Current law is out of balance: it is too protective of the liberty of the former while the latter can dissemble or easily dodge service of notices or orders by not answering the door.
It does not have to be this way any longer. From a 1 percent tax on incomes in excess of $1 million, the Mental Health Services Act since 2005 has generated an enormous amount of revenue for the care of SMI individuals. Since fiscal year 2014-15, the annual deposit to the MHSA Fund has ranged between $1.7 billion to the over $2.2 billion that is projected for 2018-19. Proposition 2 has just authorized $2 billion in bonds, which the MHSA will finance, to be distributed to counties to address housing for the homeless. Extensive additional MHSA funds should be available to address construction, operation, maintenance, and high quality staffing of the necessary psychiatric facilities. Courts have also recently held that California and federal parity laws require private insurers to pay for residential mental health care on par with comparable medically necessary physical health care, freeing more MHSA funds.
Just announced in November, California can now also seek a waiver from federal Medicaid restrictions so that Medi-Cal can pay for more and longer inpatient psychiatric care for the seriously mentally ill. Our representatives must insist that California obtain this waiver without delay.
Amendments to current law must also be made:
▪ For court-ordered care for the collapsed individual on the sidewalk, change the standard of “gravely disabled” from those who are “unable to provide for his or her basic personal needs for food, clothing or shelter” to those who are unable to provide for their “food, clothing, shelter, medical care, or mental health care.”
▪ Expressly authorize the authorities to take a person into custody who presents a “substantial danger of harm to others or self” due to mental illness.
▪ Change current law to allow mental health-care providers to share the details of a person’s psychiatric history with law enforcement, other mental health professionals, family, and close friends of the individual who have a confidential need to be involved. HIPAA ordinarily would not allow this change, but HIPAA does not preempt state laws that are more protective of patient privacy. California law should declare that these changes are more protective of patient privacy in that they reduce the risk that the person’s mental health history will become publicly known as a result of suicide or public calamity.
▪ Authorized personnel should be able to obtain an emergency noncriminal warrant allowing forced entry if the person refuses to open the door.
▪ Finally, “carried out with the utmost consideration for the privacy and dignity of the person for whom a court-ordered evaluation is requested” should be changed to “carried out with equal consideration for public safety and for the privacy and dignity of the person….”.
Californians saw the need and provided for the necessary funding in passing the MHSA as Proposition 63 in 2004. A portion of MHSA funds must be used for construction, operation and high-quality staffing of new psychiatric facilities in conjunction with the Medicaid waiver, mental health parity laws, and amendments to the laws for court-ordered care.
Daniel O. Jamison of Fresno is an attorney with Dowling Aaron Incorporated. He can be reached at firstname.lastname@example.org.